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COURT OF APPEALS DECISION DATED AND RELEASED December
21, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 95-1814
95-1815
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF ROCK,
Plaintiff-Respondent,
v.
GREGORY
J. SENDELBACH,
Defendant-Appellant.
APPEALS
from judgments of the circuit court for Rock County: JOHN H. LUSSOW, Judge. Affirmed.
VERGERONT,
J.[1] Gregory
J. Sendelbach appeals from judgments convicting him of operating a motor
vehicle with a prohibited alcohol concentration in violation of
§ 346.63(1)(b), Stats., and
hit and run upon striking property in violation of § 346.69, Stats.[2] Sendelbach raises two issues on appeal: (1) may a police officer conduct a
traffic investigation by taking a suspect to another location without probable
cause to arrest?; and (2) was there probable cause to arrest Sendelbach
when he was taken by the officer to a location away from the place where he had
been stopped by the officer?
We
do not address the first issue because we conclude the officer had probable
cause to arrest Sendelbach at the time the officer took him to another
location. We therefore affirm the
convictions.
Sendelbach
moved to suppress his breath test results on the ground that his seizure by
Rock County Deputy David Vierck, and Vierck's transporting him to another
location, constituted an invalid arrest in that there was no probable cause to
believe that he had committed a crime.
The
trial court denied the motion to suppress and found Sendelbach guilty of
operating a motor vehicle with a prohibited alcohol concentration, and hit and
run upon striking property.
Officer
Vierck's testimony was as follows. He
was patrolling Highway 14 in Rock County at 2:47 a.m. when he observed a
vehicle that had left the highway and was sitting in a field. There was extensive damage to the front end
of the vehicle. The vehicle had struck
some trees. A sign may have been hit,
as well as some trees on a fence line.
Footprints in the field led to the roadway. Vierck could smell intoxicants in the vehicle. No one was in the vehicle. The keys were not in the ignition. There was no sign that a person had been
injured. After Vierck waited for another
officer to arrive, he began looking for the person who had been driving the
vehicle.
Officer
Vierck found a person walking on Highway 14 about a mile from the vehicle. The person, Sendelbach, identified himself
as "Greg" and said he had been the driver of the car. Sendelbach was muddy and, "upon
contact," he ran into a cornfield.
Vierck took Sendelbach back to the accident vehicle in the squad car. Vierck said: "Okay. You're coming with me back there."
In
reviewing a denial of a suppression motion, we accept the trial court's
findings of historical facts unless they are clearly erroneous. See State v. Whitrock,
161 Wis.2d 960, 973, 468 N.W.2d 696, 701 (1991). Whether those facts meet the constitutional standard of probable
cause to arrest is a question of law, which we review de novo. See State v. Turner,
136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987).
Sendelbach
argues that taking him to the scene of the accident transformed the Terry[3]
stop into an arrest, and there was no probable cause for an arrest. In its brief, the State argues that there
was probable cause to arrest on at least two grounds. First, § 346.69, Stats.,
provides:
The operator of
any vehicle involved in an accident resulting only in damage to fixtures or
other property legally upon or adjacent to a highway shall take reasonable
steps to locate and notify the owner or person in charge of such property of
such fact and of the operator's name and address and of the registration number
of the vehicle the operator is driving and shall upon request and if available
exhibit his or her operator's license and shall make report of such accident
when and as required in s. 346.70.
The
State argues that, given the testimony that the trees and possibly a sign were
struck, and that the damage to the car was extensive, it is reasonable to infer
that there was damage to the trees and sign.
The State contends that, on finding the driver of the car walking a mile
away from the accident and on seeing the driver run from him after initial
contact, Vierck had probable cause to believe that Sendelbach was fleeing the
scene of the accident rather than taking reasonable steps to locate and notify
the owner or person in charge of the damaged property as required by
§ 346.69, Stats.
Second,
the State cites § 346.70(1), Stats.,
which requires "[t]he operator of
a vehicle involved in an accident resulting in ... any damage to state or other
government-owned property ... to an apparent extent of $200 or more or total
damage to property owned by any one person or to a state or other
government-owned vehicle to an apparent extent of $500 or more shall
immediately by the quickest means of communication give notice of such accident
to the police department...." The
State argues that given the extensive damage to the car, it is reasonable to
infer that the minimum amount of damage was met and, again, that the
circumstances under which Vierck found Sendelbach and Sendelbach's behavior
constituted probable cause to believe that Sendelbach was not communicating the
damage to the police or sheriff.
Sendelbach
discusses neither of these statutes in his first brief and has filed no reply
brief. We consider this a concession
that Vierck had probable cause to arrest him for a violation of either one or
both of these statutes at the time Vierck transported him in the squad
car. See Schlieper v. DNR,
188 Wis.2d 318, 322, 525 N.W.2d 99, 101 (Ct. App. 1994) (a proposition asserted
by a respondent on appeal and not disputed by the appellant's reply is taken as
admitted). We are persuaded that Vierck
did have probable cause to arrest for a violation of either one or both of
these statutes. We therefore affirm the
trial court's denial of the suppression motion and affirm the convictions.
By
the Court.—Judgments affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.